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9. Tenant for life-Statute of Limitations-Tenant in common -Issues.-The personal representative of a deceased tenant for life of a mortgaged estate is not a necessary party to a bill by the mortgagee against the remainderman, although the bill pray payment of an arrear of interest which accrued during his life-time. Where a mortgagee is also tenant for life of the mortgaged estate, the Statute of Limitations does not begin to run against the mortgage title until his death, and the same rule applies where the mortgagee is a tenant in common with others, of the mortgaged estate. Form of issues directed in a foreclosure suit to ascertain whether a mortgage deed, forty-five years old, had ever subsisted as a security, and if so, whether it had been satisfied. Wynne v. Styan, 2 P. 303.

And see BOTTOM RY BOND, 1, 2. LUNACY, 8. SALE UNDER COURT, 1. SOLICITORS, 7.

NEGLECT. See EXECUTOR AND ADMINISTRATOR, 1.

NEXT FRIEND. See FEME COVERT.

NON-RESIDENCE. See ECCLESIASTICAL RIGHTS.

NOTICE. See MARRIAGE SETTLEMENT.

VENDOR AND PURCHASER, 3.

NUNC PRO TUNC.

MORTGAGE, 4, 6.

See EXCEPTONS, 3.

OMISSION IN DECREE. See CONVEYANCE, 4.

OPEN QUARRIES. See Waste, 1.

ORDERS OF COURSE. See EX PARTE ORDERS. PRACTICE, 6.

PARENT AND CHILD. See INFANT, 2.

PARTIES. See MORTGAGE, 9. PLEADING. SUPPLEMENTAL BILL, 1.

PARTNERSHIP. - Prayer of bill.-A. having been in partnership with B., after B's death carried on the same business, and disposed of the stock and bought in new. Shortly after B.'s death a valuation was made, by which the property that had belonged to the partnership was estimated at a certain value. The business subsequently declined. On a bill filed by the representatives of B., A. was charged with the amount of the valuation and interest since B.'s death, though the bill only prayed a partnership account. Booth v. Parkes, Beat. 444.

PATENT.-Practice-Appeal for costs-Infringement of patent. The rule which prohibits an appeal for costs alone is confined to those cases in which the correctness of the decision as to costs cannot be judged of without rehearing the cause upon the merits, and therefore does not apply to a case in which the error of such decision is apparent on the face of the decree or order appealed from. Where a bill to restrain an alleged infringement of a copyright is retained, at the hearing, with liberty to the plaintiff to bring an action, and the action is accordingly brought and fails, it is of course that the bill

should be dismissed with costs, and therefore if dismissed without costs, it is error on the face of the decree. Chappell v. Purday, 2 P. 227.

And see INJUNCTION, 2.

PAYMENT. See SOLICITOR, 8, 9, 10. WILL, 10.

PAYMENT OUT OF COURT. Unclaimed money Presumption of death. - A sum of money was set apart, in 1815, to answer an annuity to a woman then supposed to be resident in India, but who was never afterwards heard of. In 1837, the Master having certified, upon presumption, that she was dead, but without finding when she died, the court ordered payment of the principal money to the party entitled to it, subject to the annuity. In 1842, the Master having certified, upon presumption, that she had died in 1822, and that no personal representative had been heard of, the court ordered immediate payment to the same party of the accumulations since that time. And in 1847 it ordered payment of the rest of the fund to the same party, though resident abroad, upon his giving his personal security to refund in case the annuitant or her personal representative should ever establish a claim. Cuthbert v. Purrier, 2 P. 199.

And see FEME COVERTE.

PERPETUATION OF TESTIMONY. - Foreign courtsJurisdiction. It is no objection to the publication of depositions which have been taken in a suit to perpetuate testimony, that the proceedings for which they are required are in the court of a foreign country, or that other depositions taken in a similar suit in that country have already been published. Semble, this court has jurisdiction to perpetuate testimony with a view to proceedings in foreign courts. Morris v. Morris, 2 P. 205.

PETITION. See CONVEYANCE, 4.

PIN MONEY. See HUSBAND AND WIFE, 1.

PLAINTIFF. See WITNESS, 3.

PLEADING.-1. Insufficient statement of title-Demurrer— Parties.- Plaintiff by his bill stated that A. by deed conveyed certain lands to trustees, to the use of B. for life, remainder to his issue male; and that the lands so conveyed were held by A. under and by virtue of certain leases, or agreements for leases, for lives, renewable for ever on certain terminable leases or agreements for terminable leases;" the dates and particulars of which plaintiff could not set forth, by reason of the same and the other muniments of the title being lost, or in defendant's possession, having been delivered to him by B., on a sale to him of B.'s interest. The plaintiff, as first tenant in tail, sought a discovery of the deeds, and that certain renewals obtained by B. in his own name might be decreed a graft on the original leases, and for an injunction to stay waste: Held, on demurrer, that the reasonable construction of the statement was that

the lands were held by A. at the time of the execution of the deed; that the statement of the title of A. was not under the circumstances open to demurrer, inasmuch as the same principle which excuses a plaintiff from setting out a defendant's title ought to excuse him setting out the title of a party under whom plaintiff derives, while the defendant wrongfully withholds the possession of the title-deeds from him. Semble, such objection cannot be made upon a general demurrer for want of equity: Held, also, that the surviving trustee was not a necessary party. Hill v. Mill, 9 Ir. Eq. R. 164.

2. Parties Breach of trust.-A party entitled to a moiety of an ascertained fund cannot maintain a suit for payment of his share without making the person entitled to the other moiety a party, if, owing to breach of trust, the whole fund is not forthcoming; Semble; and the decision in Perry v. Knott, 5 Beav. 293, to the contrary disapproved. Lenaghan v. Smith, 2 P. 301.

3. Parties-Demurrer- Administration suit-Legatee.-It is perfectly settled, as a general rule, that a pecuniary legatee is not a necessary or proper party to a bill for an account of the personal estate. It is the duty of the executors to protect the estate against improper demands. But where a question directly occurred between the residuary legatee and a pecuniary legatee, which it was found impossible to determine in a general administration suit, and a suit was afterwards instituted by the residuary legatee against the pecuniary legatee and the executor to determine it, a demurrer by the pecuniary legatee, on the ground that he had improperly been made a party, was, under the special circumstances, overruled. The Marquis of Hertford v. The Countess de Zichi, 9 B. 11.

4. Parties-Trustees for separate use of feme covert.—To a bill to raise a demand out of property vested in trustees for the separate use of a feme covert, the trustees ought to be made answering parties. Peppard v. Kelly, 2 J. & L. 558.

And see INFANT, 1. PRO CONFESSO. REHEARING. SUppleMENTAL BILL, 1.

PORTIONS.-1. Construction of deed-Power of appointmentConsent to marriage.-Testator devised lands to P. upon trust to convey them to his three sons, in such shares as P. should appoint; and in default of appointment he gave the lands to them equally, as tenants in common. In 1786 P., in execution of the trust, conveyed part of the lands to the use, that in case S. (one of the sons) should marry, with the consent of P. first obtained, but not otherwise, such woman or women as he should so marry, in case she should survive him, should, during her life, receive for jointure such annuity (not exceeding a certain sum) as S. should appoint: and to the further use, in case S. should marry with such consent, but not otherwise, that he might by deed or will charge the lands with 5001. for portions for his younger children, payable in such shares as he should appoint. In 1788, S. married with consent, and, reciting his power, covenanted that the trustees of his settlement, in case there should

be one or more younger children of the marriage living at his death, should raise 500l. out of the lands; the said sum to be divided in such shares and proportions amongst such younger children as he should by will appoint, and for want of appointment, equally. There was issue of this marriage three younger children. S., after the death of P., married a second wife, and charged the lands with an annuity for her jointure; and died, leaving his wife and four children of his second marriage, and the three younger children of his first marriage, surviving. By his will in 1842 he appointed 1s. to each of the children of the first marriage, and the residue among the children of the second marriage: Held, upon the construction of the settlement in 1786, and the circumstances that the consent of P. was only requisite to any marriage of S. which should take place in his lifetime; and that the children of the second marriage were objects of the power; that the settlement of 1788 amounted to a contract, that so far as S. could bind his power, the children of the first marriage should take the fund equally between them, if he did not otherwise apportion it amongst them; that, upon there being issue of the second marriage, S.'s power of appointment was gone; and that the children of both marriages were entitled to the fund equally between them as one class. Green v. Green, 2 J. & L. 529.

2. Election.--By a deed, reciting that estates were charged with 10001. for younger children under a previous settlement, the lands were resettled and a sum of 2500l. charged for the younger children. The previous settlement really charged the lands with 20001; the younger children claiming both the 2000l. and 2500l.: Held, that there was no case for election between the deeds, but merely a misrecital, and if the real intention was to charge the 2500l. in addition to 10007. only, it should have been proved by parol evidence. Ruby v. Foot, Beat. 581.

3. Legacy-Power of appointment-Vesting.-A. having a power under a will to charge a sum of money on B.'s estate, as and for a provision for his lawful issue, exercised the power by a deed merely charging the estate with the sum, as a provision for his lawful issue. A. had several children, one born at the testator's death, others at the date of the deed, and others subsequently: Held, that all the children were entitled to shares, which vested seriatim on their successively attaining twenty-one, the share of each proportioned to the number of children in esse when it vested, and not before provided for, the children attaining twenty-one being regarded as successive new periods of distribution; though this produced considerable inequality in the shares, and would wholly disappoint any child born after the others had all attained twenty-one; grandchildren to be considered as provided for by their parents' shares. This principle is not applicable to a legacy, the rule being, that whenever a legacy is given to a class of persons, if the gift is immediate, those only take who answer the description at the testator's death; and when the enjoyment is deferred, as by the intervention of a life estate, or

appointment of a future time for payment, those take who answer the description at the prescribed period. Norman v. Norman, Beat. 430.

4. Marriage articles-Survivorship and accruer Issue. -By articles executed in consideration of marriage and the fortune of the wife, it was agreed that the trustees of a money fund, after the decease of the husband, should pay the residue of the interest, and also the principal sum (subject to an annuity by way of jointure for the wife), to the issue of the marriage, in such shares and proportions to any one or more of them, in exclusion of the others of them, as the husband should by deed or will appoint, and in default of appointment to all the issue, in equal shares, to such of said issue as should be sons at twenty-one, and to such of them as should be daughters at twenty-one or marriage. And that power should be given to pay towards the advancement of any of said issue any sum not exceeding one-half of the principal sum belonging to such child respectively; and in case there should be no issue, or all such issue should die in the lifetime of the husband, then that the entire of the trust funds, subject to the jointure, should vest and be assigned and go to the husband, his heirs, executors, &c. absolutely, for his and their sole use and benefit. And it was further agreed, that a regular deed of settlement should be executed, which should contain the several clauses and covenants in such cases usual and proper: Held, 1. That the word "issue" in the articles was to be read "children." 2. That the settlement ought to contain clauses vesting the shares of the sons in them at twenty-one, and of the daughters in them at twenty-one or marriage; and also clauses of survivorship and accruer of the shares of sons dying under twenty-one, and of daughters dying under that age without having been married, in favour of the surviving or other children. 3. That the husband was entitled to the fund, either in the event of his surviving all his children or of no child attaining a vested interest therein, and that the settlement ought to contain clauses accordingly. Roche v. Roche, 2 J. & L. 561.

5. Vesting.-The trusts of a term were, at twelve years from a mother's death to raise 2500l. for younger children; 1000l. of it for one of them, A., and the remainder for the others, to be paid to them respectively when raised pursuant to the deed. The deed was one in which the mother, being tenant for life, joined her eldest son, the remainderman, in opening the estate. A. died in his mother's lifetime: Held, the 1000l. was not vested and could not be raised. A charge payable at a future day is, in general, not raisable, if the party die before the day, except when the time of payment is postponed for the convenience of the estate, when it is otherwise; but this exception does not apply to children's portions, which are not generally raisable for the child's representative, if he dies before he wants a provision. The rule and case on this subject considered. Ruby v. Foot, Beat. 581.

POWER.-1. Appointment-Suspicion of fraud.-Strong suspicion that an appointment by a father to his son was for the benefit

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